ALJDEC decisions subject to certification as final

08F-2489-ROC-com · Registrar of Contractors · 2009-12-23

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2009

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by its President and Qualifying Party Mike Perkins, accompanied by witness Joel Johnson. ROC Inspector Ted Gerold appeared and testified.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing by the Registrar of Contractors (“ROC”): “At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has failed to comply with the Registrar’s May 22, 2009 Order, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent has failed to comply with the May 22nd Order, absent unreasonable interference or denial of access by Complainant, then its Class B License No. 167249 License [sic] shall be subject to the immediate imposition of suspension. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives, this Respondent’s Class B License 167249 shall be placed on probation for a period of 120 days in accordance with the Registrar’s May 22nd Order, and Complainant shall not be allowed access to the Residential Contractors’ Recovery Fund, even if otherwise eligible.”[1] This tribunal entered the ROC complaint file, pertaining to the underlying complaint, into the record, along with a few unmarked documents provided at the hearing that pertain to Respondent’s bond.[2] The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent has failed to comply with the Registrar’s Order and recommending immediate suspension of Respondent’s license. FINDINGS OF FACT 1. Respondent is the holder of a class B- general residential contracting license (No. 126743) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects.[3] Mike Perkins is Respondent’s President and Qualifying Party. 2. On May 22, 2009, after an evidentiary hearing, the Registrar adopted an Administrative Law Judge Decision finding Respondent in violation of contractor licensing laws and recommending that Respondent be ordered to replace flooring in two rooms of Complainant’s house, as had been previously ordered in an ROC Corrective Work Order. Respondent was given until July 1, 2009, to perform the work. 3. In July 2009, both parties informed the ROC by letter that the work had not been done. Respondent blamed it on Complainant and vice versa. The matter was then set for a compliance hearing. ROC Inspector Ted Gerold performed a compliance inspection on December 8, 2009 and verified that no work had been done. 4. At hearing, Respondent presented evidence of its attempts to comply with the Order. In mid-May 2009, Respondent was informed that its bonding company was cancelling its bond effective June 14. In early June, Respondent met with Complainant to discuss getting the work done. Respondent informed Complainant that it was having financial difficulties and did not presently have the money to buy the materials for the work, but would get it as soon as possible. According to Mike Perkins, he told Complainant about the bond cancellation issue. Complainant denies that she was told this. Perkins was able to buy the materials later in June, sometime after June 11, 2009. 5. On June 14, 2009, Respondent’s bond was cancelled. The evidence shows that Perkins made one or two minute phone calls to Complainant’s cell phone on June 16 and June 19. It is likely that he left voice messages for Complainant. Respondent did not get a new bond until June 25, 2009, but the bond had the wrong name on it: “Final Faze Construction Builders, Inc.” instead of Final Faze Custom Builders, Inc. The bond with the wrong name was filed with the ROC on June 25, 2009. 6. On June 17, 2009, Complainant sent a letter to Respondent noting the suspension of the license and wondering how Respondent was going to get the work done without an active license. 7. On June 26, 2009, Respondent had the name corrected on the bond and filed the change with the ROC Licensing section. The evidence shows that as of June 26 at about 8:00 a.m. and 4:00 p.m. the ROC website showed that Respondent’s license was suspended for lack of bond as of June 14. 8. On June 26, 2009, Perkins went to Complainant’s house in the early morning to get Complainant to sign a proposal for the work and to discuss when the work could be done. Complainant was not prepared for the visit and Perkins was sent away, with Complainant stating that she would “think about it.” Complainant looked up Respondent’s information on the ROC website and saw that the license was still suspended for lack of bond. Furthermore, Complainant and her family were leaving the next day for a work/vacation trip out of the state. Complainant testified that Respondent had been informed of this at the meeting in early June. Complainant left the next day and no work was performed. There is evidence that Respondent called Complainant’s cell phone on the afternoon of June 26 and left an unknown message. 9. On July 1, 2009, Complainant filed a letter with the ROC stating that the corrective work had not been performed, noting the suspension of the license, and requesting access to the Recovery Fund. 10. It is apparent from the evidence that Complainant had lost trust in Respondent and was reluctant to let Respondent do any more work. This does not mean, however, that Complainant denied access to Respondent. 11. On July 21, 2009, Respondent filed with the ROC a letter to Complainant stating that there was difficulty scheduling the work and presenting two weeks in August that the work could be done. Complainant was confused about what the letter stated (the letter is, indeed, not clear) and did not respond to the letter. 12. Both parties believe that they have attempted to work with the other at getting the corrective work done. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] In this instance, given the nature of a compliance hearing, Respondent was directed at hearing to present evidence that it made reasonable attempts to comply with the Registrar’s May 22, 2009 Order. Complainant was directed to present evidence showing that she did not unreasonably deny or restrict access. 2. The evidence shows more clearly that Complainant did not unreasonably deny or restrict access to the property. 3. The evidence shows some efforts by Respondent to comply, but those efforts were not effective. 4. Given that Complainant did not unreasonably deny or restrict access to the property, this tribunal must find that Respondent’s efforts were inadequate and that Respondent failed to comply with the May 22, 2009 Order. Without unreasonable denial or restriction of access, Respondent should have been able to comply. 5. Pursuant to that conclusion and the Registrar’s compliance hearing order, Respondent’s license must be immediately suspended. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Class B- license (167249) held by Final Faze Custom Builders, Inc. be immediately suspended.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this 23rd day of December 2009.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Order Denying Request for Rehearing and Setting Compliance Hearing, issued August 24, 2009. [2] Several of these documents were filed with the ROC in June 2009, as shown by the ROC date stamps on them. The others are printouts of information from the ROC website in June 2009. [3] See, Arizona Administrative Code (A.A.C.) R4-9-104 for a description of residential license classifications. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826